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Drunken driving suit settled for $3.85 million
AUSTIN AMERICAN-STATESMAN STAFF ^ | Friday, May 21, 2004 | By Steven Kreytak

Posted on 05/21/2004 10:24:54 AM PDT by Arrowhead1952

Outback Steakhouse to pay bulk of settlement for serving driver alcohol


By Steven Kreytak

AMERICAN-STATESMAN STAFF

Friday, May 21, 2004

Michael Cunningham is full of hope.

His family's Hyundai was crushed by a drunken driver's GMC Yukon almost three years ago, and his wife, Panchita Cunningham, 44, is now a paraplegic and living in a South Austin nursing home. But she recently started to move the eyelid and foot on her previously motionless left side.

The drunken driver, David Elkin, was sent to prison for about a year for intoxication assault and is now working and living in Houston. Michael Cunningham said he is optimistic that Elkin, who is 25, can rebound and live a positive life.

And next week, a state district judge is expected to approve a lawsuit settlement that will pay the Cunninghams $3.85 million. Michael Cunningham, 38, plans to use the money to pay for surgeries and physical therapy that his wife's current insurance won't cover because doctors think the procedures won't help.

Most of the money will come from the Outback Steakhouse chain. Elkin had been drinking at an Outback on U.S. 183 in North Austin before the wreck.

"No amount of money is going to replace my wife coming home with us," said Michael Cunningham, who lives in Cedar Park with the couple's 11-year-old son, Rashard. "We have to look at it as a means to an end."

The Cunninghams sued Outback under a Texas law that allows victims of wrecks with drunken drivers to seek damages from the restaurant or bar that served alcohol to a driver who was visibly intoxicated, said the family's Austin lawyer, John Ragland.

University of Texas School of Law professor David Robertson said such lawsuits are becoming increasingly common in criminal cases because people who commit crimes usually don't have much money or insurance coverage. "Lawyers are eternally on the lookout for a solvent entity whose conduct has facilitated the crime," he said.

John Polewski, a DeSoto lawyer representing Outback, said that the settlement was a way to avoid the uncertainty of leaving damages to a jury. Such an award could have topped $20 million, he said.

"He wasn't showing any signs of being intoxicated at the Outback," Polewski said of Elkin. "We certainly feel terrible for Panchita and her family."

The lawsuit alleged that on the night of the wreck, Elkin had been drinking with a business associate and other friends at the Outback Steakhouse on U.S. 183, near Duval Road.

"The alcohol servers failed to monitor the amount of alcohol consumed by Defendant Elkin and failed to communicate with each other about the amount he consumed," Ragland wrote in the lawsuit.

When Elkin left the Outback, Michael and Panchita Cunningham were returning home after picking Rashard up at a friend's house.

As they stopped at a yield sign to turn onto the U.S. 183 frontage road, Elkin took a turn onto the same road too fast and plowed into the Cunninghams' Hyundai, Ragland said.

Michael Cunningham suffered internal injuries, and Rashard broke his arm. Panchita Cunningham suffered major trauma to the right side of her head, which controls the left side of her body, Michael Cunningham said. She lost the ability to speak for a year after the wreck.

Elkin, who could not be reached for comment, was sentenced to two years in prison and was paroled last year after serving less than one year.

Michael Cunningham said he wrote a letter to the parole board recommending that Elkin be released.

"We are Christians," he said. "I could not hold all of that hate and anger. The only person that it would have come out on is my son."

Elkin was "profoundly" affected by the crash and "feels very, very bad," said his civil lawyer, Bob Grove of Austin, who declined further comment.

Under the settlement, Elkin will pay the Cunninghams $100,000, which will be covered by his auto insurance. Elkin's employer will pay $100,000. He worked for a lawn sprinkler service company, and Ragland alleged that because a colleague from the same company was drinking with him that night, the trip to Outback was partly work-related.

3M Company agreed to pay the Cunninghams $150,000. The Hyundai was crushed against concrete posts securing a pipeline owned by 3M that runs alongside the road.

Cunningham said he hasn't heard from Elkin, but hopes he is doing all right.

"He has to learn how to forgive himself," he said. "Because we have already forgiven him."


TOPICS: Crime/Corruption; Culture/Society; Government; Miscellaneous
KEYWORDS: alcohol; dui; lawsuit; liability; outbacksteakhouse
The bold is what gets me about this article. This drunk is lucky he was tried in Travis (ultra liberal) county, rather than Williamson Co. There was a jury in Williamson Co. that assessed a man 99 years for raping a woman.

I heard about one DUI who was stopped in that county (so drunk he had no idea where he was at) and when he asked where he was, the officer told him Williamson county. The drunk started crying. He knew what kind of juries and the punishment you get there.

1 posted on 05/21/2004 10:24:58 AM PDT by Arrowhead1952
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To: Arrowhead1952

2 posted on 05/21/2004 10:28:08 AM PDT by Puppage (You may disagree with what I have to say, but I shall defend to your death my right to say it.)
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To: Arrowhead1952
The Cunninghams sued Outback under a Texas law that allows victims of wrecks with drunken drivers to seek damages from the restaurant or bar that served alcohol to a driver who was visibly intoxicated, said the family's Austin lawyer, John Ragland.

Under the settlement, Elkin will pay the Cunninghams $100,000, which will be covered by his auto insurance. Elkin's employer will pay $100,000. He worked for a lawn sprinkler service company, and Ragland alleged that because a colleague from the same company was drinking with him that night, the trip to Outback was partly work-related.

3M Company agreed to pay the Cunninghams $150,000. The Hyundai was crushed against concrete posts securing a pipeline owned by 3M that runs alongside the road.

About sued everyone in sight.

To have a defense against these lawsuits, industry must:

1. Track every drink that a customer has purchased
2. Not allow anyone from a business to go out to dinner with anyone else from that same business in their off time
3. Do not secure or build anything within 100 yards of a road just in case someone crashes into it.

3 posted on 05/21/2004 10:32:12 AM PDT by 2banana (They want to die for Islam and we want to kill them)
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To: 2banana
3M Company agreed to pay the Cunninghams $150,000. The Hyundai was crushed against concrete posts securing a pipeline owned by 3M that runs alongside the road.

No doubt those posts should have been made from adhesive-hardened (3M's in that business as we all know) pasta all the Atkins folks aren't eating any more. Unreal.

4 posted on 05/21/2004 10:44:06 AM PDT by Attention Surplus Disorder (You get more with a gun and a smile than just a smile itself!)
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To: Arrowhead1952
I'm confused ---- (nothing new, I suppose)--

Outback (and any other restaurant) is suppose to keep tabs on each and every customer and judge if they are drunk or not.... Hmmmmm..

Then parties unrelated to the case (like the drunk driver's employer) pays part of the settlement because the guy the perp was drinking with was also an employee - making it "work related"?

And even 3M who owned the concrete fixture that the victim's car was smashed into by the drunk driver is even paying up (how is it their fault in ANY way?).

I understand the perp's insurance paying up - that's part of their liability as the insurer. But I am quite worried about otherwise unrelated entities being held to some sort of liability.

Another of the many "slippery slopes".....
5 posted on 05/21/2004 10:45:38 AM PDT by TheBattman (Leadership = http://www.georgewbush.com/)
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To: TheBattman

Outback and 3M shouldn't pay; they should confiscate Elkin's internal organs and sell 'em to pay off the victims.


6 posted on 05/21/2004 10:50:28 AM PDT by Little Ray (John Ffing sKerry: Just a gigolo!)
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To: Arrowhead1952
Michael Cunningham, 38, plans to use the money to pay for surgeries and physical therapy that his wife's current insurance won't cover because doctors think the procedures won't help.

Bad news for Mr. C. That money is going to beused to pay for what the insurance does cover, also. Insurance company gets reimbursed from the proceeds of the lawsuit. It always happens and the litigant always says they didn't know.

7 posted on 05/21/2004 10:56:45 AM PDT by RGSpincich
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To: TheBattman; 2banana
And even 3M who owned the concrete fixture that the victim's car was smashed into by the drunk driver is even paying up (how is it their fault in ANY way?).

3M Company agreed to pay the Cunninghams $150,000. The Hyundai was crushed against concrete posts securing a pipeline owned by 3M that runs alongside the road.

I noticed you both picked up on this comment. What I would like to know, is if the barriers had not been protecting the pipeline, they could have sued 3M for NOT having a barrier and also sued the pipeline company for the pipeline just being there.

This is getting to be a country whose motto may as well be, "How do you do? My name is sue, sue, sue you."

8 posted on 05/21/2004 10:58:12 AM PDT by Arrowhead1952 (It is not Bush's fault... it is the media's fault!)
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To: Arrowhead1952
Michael Cunningham said he wrote a letter to the parole board recommending that Elkin be released. "We are Christians," he said. "I could not hold all of that hate and anger. The only person that it would have come out on is my son."

So, Cunningham wants the actual perpetrator of his wife's death to get out of jail early. But his Christian compassion doesn't apply to getting millions from corporations like Outback and 3M.

9 posted on 05/21/2004 11:03:40 AM PDT by NYCVirago
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To: NYCVirago

Correction: wife is not dead, she's a paraplegic.


10 posted on 05/21/2004 11:04:22 AM PDT by NYCVirago
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To: TheBattman
This is a sad situation. Other states have enacted what are known as "dram shop" laws. The rationale is that the seller of adult beverages is or should be responsible for the capacity of their patrons. Bar owners have succesfully defended themselves from such suits by enacting their own policies for selling alcohol, particularly when to cut off a patron.

I do not how to come down on these lawsuits. Mrs. C has suffered serious injuries due to negligence. The problem is how to allocate liability. Personal responsibility is one thing, compensating for Mrs. C's injuries is another.

If I had a party, I would clearly not be responsible for any injuries attributable to my giving booze to my guests. If I "sold" booze and made a profit on it, it is reasonable that I have a higher level of responsibility.

11 posted on 05/21/2004 11:27:15 AM PDT by Don'tMessWithTexas
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To: 2banana

All resturants should impose a three drink maximum to all patrons. At Hooters, they have a one pitcher per person limit.


12 posted on 05/21/2004 11:28:56 AM PDT by LetsRok
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To: LetsRok

The problem is that some patrons could be visibly intoxicated after two drinks.


13 posted on 05/21/2004 11:34:34 AM PDT by Don'tMessWithTexas
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To: Don'tMessWithTexas

"If I had a party, I would clearly not be responsible for any injuries attributable to my giving booze to my guests. If I "sold" booze and made a profit on it, it is reasonable that I have a higher level of responsibility."

Think again. The precedent has already been set for the victims of drunk-driving collisions to sue the host(s) of a party they were at. Looking at how liability was thrown around in the above case, I'm surprised they didn't also sue the makers of whatever beverages were consumed that led to intoxication.

In any case, if plaintiff's can't extract as much money as they need or deserve from the parties that are truly responsible, then that's just tough. I don't mean to sound cold-hearted, but the welfare of the plaintiff isn't, or shouldn't be, the concern of the courts. Justice should be the concern of the courts. Allocate liability honestly and fairly and let the chips fall where they may.


14 posted on 05/21/2004 1:01:33 PM PDT by -YYZ-
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To: Don'tMessWithTexas
"If I had a party, I would clearly not be responsible for any injuries attributable to my giving booze to my guests. If I "sold" booze and made a profit on it, it is reasonable that I have a higher level of responsibility."

As far as I recall from newspapers and such (not a careful perusal of actual legal citations) The law in California does not distinguish between "sell" and "give" in the way you imply. If you provide booze to someone who later leaves your party (presumably at your house) in a drunken state and causes an accident/injury/death, I strongly believe you would be liable in the same way as a restaurant, albeit with smaller pockets to go after.

15 posted on 05/21/2004 1:19:24 PM PDT by Attention Surplus Disorder (You get more with a gun and a smile than just a smile itself!)
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To: Arrowhead1952

It would appear Michael Cunningham should be sued by his wife for negligence for not suing General Motors, the maker of the evil GMC Yukon SUV piloted by the intoxicated driver.


16 posted on 05/21/2004 2:05:36 PM PDT by BraveMan
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To: BraveMan

I'd be suing the dinosaurs, since they were chiefly responsible for the fuel used to power the Yukon, plus the vehicles that poured the 3M concrete. Then I'd go after Scott's, who provided the grass seeds which made his lawn sprinkler job so bloody stressful.


17 posted on 05/21/2004 2:08:40 PM PDT by Attention Surplus Disorder (You get more with a gun and a smile than just a smile itself!)
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To: BraveMan
This has been a hot topic of local radio talk shows this week and the single point of this article is the fact that the drunk got out of jail after one year. Anyone getting caught in Travis county can figure getting off the hook with little or no jail time for something like this. There have been other incidents just like this one, and last time I was called for jury duty,I was sent home after one or two statements against the current liberal justice system here.

Had this twerp done this in Williamson county which borders Travis to the north/northeast, he would be serving at least 50 years.

18 posted on 05/21/2004 2:13:18 PM PDT by Arrowhead1952 (It is not Bush's fault... it is the media's fault!)
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To: Arrowhead1952
David Elkin was dealt with quite harshly compared to the man responsible for this.

I ask you; given the circumstances, who is guilty of the greater crime?

19 posted on 05/21/2004 9:08:59 PM PDT by BraveMan
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